NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHANDY MOREJON-MEDINA, ) ) Petitioner, ) ) v. ) Case No. 2D18-3539 ) STATE OF FLORIDA, ) ) Respondent. ) ___________________________________)
Opinion filed August 14, 2019.
Petition Alleging Ineffective Assistance of Appellate Counsel. Sarasota County; Thomas Krug, Judge.
Brett D. McIntosh and Kevin M. Griffith of Brett D. McIntosh, P.A., for Petitioner.
Ashley Moody, Attorney General, Tallahassee, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa (withdrew after briefing), Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Respondent.
ATKINSON, Judge.
Johandy Morejon-Medina (Medina), in a petition filed under Florida Rule of
Appellate Procedure 9.141(d), alleges that his appellate counsel was ineffective for
failing to argue that his convictions violate double jeopardy under State v. Shelley, 176
So. 3d 914 (Fla. 2015). Although we disagree that counsel's performance was deficient at the time of the appeal, under current law Medina's convictions violate double
jeopardy, constituting fundamental error on the face of the record that we are bound to
correct.1
On February 12, 2013, Medina responded to an online ad posted by a
police officer posing as a girl looking for "fun guys" to "hang out" with in Sarasota. In the
afternoon of February 13, the girl informed Medina that she was fourteen years old, and
Medina acknowledged the girl's purported age the next day. In the afternoon of
February 14, Medina steered the conversation towards sex and discussed sexual acts
that he wanted to perform with the fourteen-year-old girl. On February 15, Medina
reinitiated communication with the fourteen-year-old girl, stated that he wanted to
perform sexual acts with her, and then arrived at the address she provided.
The State charged Medina with using a computer to solicit a child to
commit a sex act (solicitation) "on or between February 12, 2013 and February 14,
2013," in violation of section 847.0135(3)(a), Florida Statutes (2012), and traveling after
soliciting a child to commit a sex act (traveling after solicitation) "on or about February
15, 2013," in violation of section 847.0135(4)(a). After a jury found him guilty as
charged, Medina was sentenced to concurrent terms of forty-two months' imprisonment
followed by eighteen months' sex offender probation. We affirmed his convictions.
Medina v. State, 206 So. 3d 46 (Fla. 2d DCA 2016) (table).
To establish a claim of ineffective assistance of appellate counsel, the
petitioner must show that counsel's performance was deficient—that it "deviated from
1We find that Medina's other ground lacks merit and deny relief without discussion. -2- the norm or fell outside the range of professionally acceptable performance." Downs v.
Moore, 801 So. 2d 906, 909 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d
1162, 1163 (Fla 1985)). The petitioner must also show prejudice—that appellate
counsel's deficient performance "compromised the appellate process to such a degree
as to undermine confidence in the fairness and correctness of the appellate result." Id.
at 909–10. "Although this court must apply the law in effect at the time of the appeal to
determine whether counsel's performance was deficient, we must apply the current law
to determine whether [the petitioner] is entitled to relief . . . ." Brown v. State, 25 So. 3d
78, 80 (Fla. 2d DCA 2009) (footnote omitted).
Medina argues that appellate counsel was ineffective for failing to argue
on appeal, as trial counsel had unsuccessfully argued below, that his convictions for
solicitation and traveling after solicitation violate double jeopardy under Shelley, which
issued four months before counsel filed the initial brief. There, Shelley replied to a
Craigslist ad posted by a police officer impersonating a mother "looking for family fun."
Shelley, 176 So. 3d at 916 (quoting Shelley v. State, 134 So. 3d 1138, 1139 (Fla. 2d
DCA 2014)). Through electronic communications over the course of several days,
Shelley arranged to have sex with the "mother" and her "ten-year-old daughter." Id.
After Shelley was arrested at the agreed location, the State charged him with solicitation
under section 847.0135(3)(b) and traveling after solicitation under section
847.0135(4)(b).2 Id. at 916–17. The State alleged both offenses occurred on the same
date. Id. at 917.
2WhileShelley involved violations of sections 847.0135(3)(b) and (4)(b), and Medina was charged with violating sections 847.0135(3)(a) and (4)(a), "the only difference between the subsections is who the defendant believes he or she is -3- On appeal, we held that Shelley's convictions for solicitation and traveling
after solicitation based upon the same conduct violated double jeopardy. Shelley, 134
So. 3d at 1142. The supreme court approved our decision and held that "because the
statutory elements of solicitation are entirely subsumed by the statutory elements of
traveling after solicitation, the offenses are the same for purposes of the Blockburger [v.
United States, 284 U.S. 299 (1932)] same-elements test . . . . Therefore, double
jeopardy principles prohibit separate convictions based on the same conduct." Shelley,
176 So. 3d at 919.
In this case, the State acknowledges the supreme court's holding in
Shelley but argues that "convictions for both soliciting and traveling may be legally
imposed in cases in which the State has charged and proven separate uses of
computer devices to solicit." Shelley, 134 So. 3d at 1142. The State contends that it
charged and proved at trial that Medina committed separate acts of solicitation on
February 14 and February 15 before Medina traveled on February 15 to the address
provided by the fourteen-year-old girl. As such, the State argues that Medina's
solicitation and traveling after solicitation convictions did not violate double jeopardy
because the State charged and proved separate offenses that occurred on separate
dates; thus, Medina cannot show deficient performance by appellate counsel.
soliciting," i.e., the parent, custodian, or guardian or the child or a person believed to be a child. Lee v. State, 258 So. 3d 1297, 1302 n.9 (Fla. 2018). Indeed, this court extended its reasoning in Shelley to solicitation under section 847.0135(3)(a) and traveling under section 847.0135(4)(a), noting that they "run parallel to the statutory sections addressed in Shelley." Sang Youn Kim v. State, 154 So. 3d 1168, 1169 (Fla. 2d DCA 2015).
-4- Here, unlike Shelley, where the State alleged both offenses occurred on
the same date, the State alleged separate dates in the separate counts. See Shelley,
176 So. 3d at 917. The information identifies the solicitation charge occurring "on or
between February 12, 2013 and February 14, 2013" and the traveling after solicitation
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JOHANDY MOREJON-MEDINA, ) ) Petitioner, ) ) v. ) Case No. 2D18-3539 ) STATE OF FLORIDA, ) ) Respondent. ) ___________________________________)
Opinion filed August 14, 2019.
Petition Alleging Ineffective Assistance of Appellate Counsel. Sarasota County; Thomas Krug, Judge.
Brett D. McIntosh and Kevin M. Griffith of Brett D. McIntosh, P.A., for Petitioner.
Ashley Moody, Attorney General, Tallahassee, and Bilal Ahmed Faruqui, Assistant Attorney General, Tampa (withdrew after briefing), Allison C. Heim, Assistant Attorney General, Tampa (substituted as counsel of record), for Respondent.
ATKINSON, Judge.
Johandy Morejon-Medina (Medina), in a petition filed under Florida Rule of
Appellate Procedure 9.141(d), alleges that his appellate counsel was ineffective for
failing to argue that his convictions violate double jeopardy under State v. Shelley, 176
So. 3d 914 (Fla. 2015). Although we disagree that counsel's performance was deficient at the time of the appeal, under current law Medina's convictions violate double
jeopardy, constituting fundamental error on the face of the record that we are bound to
correct.1
On February 12, 2013, Medina responded to an online ad posted by a
police officer posing as a girl looking for "fun guys" to "hang out" with in Sarasota. In the
afternoon of February 13, the girl informed Medina that she was fourteen years old, and
Medina acknowledged the girl's purported age the next day. In the afternoon of
February 14, Medina steered the conversation towards sex and discussed sexual acts
that he wanted to perform with the fourteen-year-old girl. On February 15, Medina
reinitiated communication with the fourteen-year-old girl, stated that he wanted to
perform sexual acts with her, and then arrived at the address she provided.
The State charged Medina with using a computer to solicit a child to
commit a sex act (solicitation) "on or between February 12, 2013 and February 14,
2013," in violation of section 847.0135(3)(a), Florida Statutes (2012), and traveling after
soliciting a child to commit a sex act (traveling after solicitation) "on or about February
15, 2013," in violation of section 847.0135(4)(a). After a jury found him guilty as
charged, Medina was sentenced to concurrent terms of forty-two months' imprisonment
followed by eighteen months' sex offender probation. We affirmed his convictions.
Medina v. State, 206 So. 3d 46 (Fla. 2d DCA 2016) (table).
To establish a claim of ineffective assistance of appellate counsel, the
petitioner must show that counsel's performance was deficient—that it "deviated from
1We find that Medina's other ground lacks merit and deny relief without discussion. -2- the norm or fell outside the range of professionally acceptable performance." Downs v.
Moore, 801 So. 2d 906, 909 (Fla. 2001) (quoting Wilson v. Wainwright, 474 So. 2d
1162, 1163 (Fla 1985)). The petitioner must also show prejudice—that appellate
counsel's deficient performance "compromised the appellate process to such a degree
as to undermine confidence in the fairness and correctness of the appellate result." Id.
at 909–10. "Although this court must apply the law in effect at the time of the appeal to
determine whether counsel's performance was deficient, we must apply the current law
to determine whether [the petitioner] is entitled to relief . . . ." Brown v. State, 25 So. 3d
78, 80 (Fla. 2d DCA 2009) (footnote omitted).
Medina argues that appellate counsel was ineffective for failing to argue
on appeal, as trial counsel had unsuccessfully argued below, that his convictions for
solicitation and traveling after solicitation violate double jeopardy under Shelley, which
issued four months before counsel filed the initial brief. There, Shelley replied to a
Craigslist ad posted by a police officer impersonating a mother "looking for family fun."
Shelley, 176 So. 3d at 916 (quoting Shelley v. State, 134 So. 3d 1138, 1139 (Fla. 2d
DCA 2014)). Through electronic communications over the course of several days,
Shelley arranged to have sex with the "mother" and her "ten-year-old daughter." Id.
After Shelley was arrested at the agreed location, the State charged him with solicitation
under section 847.0135(3)(b) and traveling after solicitation under section
847.0135(4)(b).2 Id. at 916–17. The State alleged both offenses occurred on the same
date. Id. at 917.
2WhileShelley involved violations of sections 847.0135(3)(b) and (4)(b), and Medina was charged with violating sections 847.0135(3)(a) and (4)(a), "the only difference between the subsections is who the defendant believes he or she is -3- On appeal, we held that Shelley's convictions for solicitation and traveling
after solicitation based upon the same conduct violated double jeopardy. Shelley, 134
So. 3d at 1142. The supreme court approved our decision and held that "because the
statutory elements of solicitation are entirely subsumed by the statutory elements of
traveling after solicitation, the offenses are the same for purposes of the Blockburger [v.
United States, 284 U.S. 299 (1932)] same-elements test . . . . Therefore, double
jeopardy principles prohibit separate convictions based on the same conduct." Shelley,
176 So. 3d at 919.
In this case, the State acknowledges the supreme court's holding in
Shelley but argues that "convictions for both soliciting and traveling may be legally
imposed in cases in which the State has charged and proven separate uses of
computer devices to solicit." Shelley, 134 So. 3d at 1142. The State contends that it
charged and proved at trial that Medina committed separate acts of solicitation on
February 14 and February 15 before Medina traveled on February 15 to the address
provided by the fourteen-year-old girl. As such, the State argues that Medina's
solicitation and traveling after solicitation convictions did not violate double jeopardy
because the State charged and proved separate offenses that occurred on separate
dates; thus, Medina cannot show deficient performance by appellate counsel.
soliciting," i.e., the parent, custodian, or guardian or the child or a person believed to be a child. Lee v. State, 258 So. 3d 1297, 1302 n.9 (Fla. 2018). Indeed, this court extended its reasoning in Shelley to solicitation under section 847.0135(3)(a) and traveling under section 847.0135(4)(a), noting that they "run parallel to the statutory sections addressed in Shelley." Sang Youn Kim v. State, 154 So. 3d 1168, 1169 (Fla. 2d DCA 2015).
-4- Here, unlike Shelley, where the State alleged both offenses occurred on
the same date, the State alleged separate dates in the separate counts. See Shelley,
176 So. 3d at 917. The information identifies the solicitation charge occurring "on or
between February 12, 2013 and February 14, 2013" and the traveling after solicitation
charge occurring "on or about February 15, 2013." On its face, the information supports
an interpretation that the solicitation underlying the traveling charge happened on
February 15—a day other than the solicitation alleged to have occurred between
February 12 and February 14. Reading the information to mean that the solicitation
underlying the traveling charge occurred on February 15, it follows that the solicitation
underlying the solicitation charge was a separate act because that act could not have
occurred any day after February 14.
The record supports this. It shows that, on February 14, Medina used a
computer device to solicit whom he believed to be a child to participate in unlawful
sexual conduct. The record also shows that the next day, on February 15, Medina used
a computer device to solicit the purported child to engage in unlawful sexual conduct
before he traveled to meet the child. In Shelley, the State relied on the record—which
showed that Shelley committed three separate acts of solicitation on the same day—for
its argument that the solicitation charge was not subsumed by the traveling charge.
Shelley, 134 So. 3d at 1141. We rejected this argument, finding that the State could not
rely on evidence adduced at trial that might support separate offenses if the State did
not charge them separately in the information. Id. at 1141–42 ("We find no legal basis
to deny a double jeopardy challenge based on uncharged conduct simply because it
could have been charged."). However, nothing in either Shelley opinion precludes
-5- consideration of the evidence adduced at trial when the information, on its face,
supports an interpretation that the State relied on separate acts of solicitation.
Almost two years after the mandate issued in Medina's direct appeal, the
supreme court in Lee v. State, 258 So. 3d 1297 (Fla. 2018), addressed a conflict in the
district courts over how a reviewing court should determine whether multiple convictions
are based on the same conduct. Id. at 1303. There, Lee was charged with one count
of solicitation, one count of traveling after solicitation, and one count of unlawful use of a
two-way communication device. Id. at 1300. The traveling offense was alleged to have
occurred "on or about January 2, 2014," while the other offenses were alleged to have
occurred "on one or more occasions between December 22, 2013, and January 1,
2014." Id. Although the State alleged separate dates in the separate counts, as the
State did here, the supreme court held that the information did not clearly show "that the
State relied on separate conduct to charge the offenses" and that it was "impossible to
know whether the jury convicted Lee of all three offenses based on the same act of
solicitation." Id. at 1304. The supreme court also held that courts must "consider only
the charging document—not the entire evidentiary record" when determining whether
convictions of these offenses that are based upon the same conduct violate double
jeopardy. Id.
The Lee opinion now requires that the charging document itself foreclose
any possibility that the solicitation underlying the traveling charge was the same as that
underlying the solicitation charge. However, Medina's appellate counsel did not have
the benefit of Lee when drafting the initial brief in Medina's direct appeal. Because the
information, on its face, supports an interpretation that the State relied on separate acts
-6- of solicitation, and the evidence adduced at trial established that separate acts of
solicitation occurred, it cannot be said that appellate counsel's conduct "fell outside the
range of professional acceptable performance" when he failed to raise a double
jeopardy violation under Shelley. Downs, 801 So. 2d at 909. Because Shelley was the
law in effect at the time of Medina's appeal, we conclude that Medina's appellate
counsel's performance was not deficient.
However, under Lee, Medina's convictions for solicitation and traveling
after solicitation violate double jeopardy because the information itself does not make
clear that the solicitation charge is separate and distinct from the solicitation underlying
the travel charge. Although the information supports an interpretation that the State
relied on separate acts of solicitation, it does not foreclose the possibility that the State
relied on the same act of solicitation. And, bound by Lee, we must not consider that the
evidence adduced at trial supported separate acts of solicitation for each charge.
A double jeopardy violation constitutes fundamental error, State v.
Johnson, 483 So. 2d 420, 421 (Fla. 1986), which we are required to correct sua sponte
if it is apparent on the face of the record, Phelps v. State, 236 So. 3d 1162, 1164 (Fla.
2d DCA 2018). As such, we must vacate Medina's conviction and sentence for
solicitation and remand for resentencing based on a corrected scoresheet. See
Pamblanco v. State, 199 So. 3d 507, 507 (Fla. 5th DCA 2016); Lashley v. State, 194
So. 3d 1084, 1086 (Fla. 1st DCA 2016). Medina failed to establish ineffective
assistance of appellate counsel, but we treat his assertion of a double jeopardy violation
as a request for a writ of habeas corpus and grant it. See, e.g., Lago v. State, 975 So.
2d 613, 614 (Fla. 3d DCA 2008).
-7- Petition granted in part and denied in part.
CASANUEVA and LaROSE, JJ., Concur.
-8-